Who’s Afraid of Big Brother?

Jim Comey had recently started a new job. So I called to congratulate him. I’d written a profile of Comey in October 2003, when he was on the verge of another job change—moving from New York, where he was U.S. Attorney for the Southern District, to Washington, where Comey would become the second-most-powerful official in the Justice Department, as deputy attorney general to John Ashcroft. When Comey called back, he got my answering machine. The tone of his reply indicated he hadn’t changed in the two years since we’d last spoken—there was laughter in his voice—and his short message seemed to be a joking reference to my old story. Yet, two months later, Comey’s words seem ominous.

Comey has always been an intriguing bundle of conflicting characteristics. He’s been a deeply conservative Republican since college, yet he cites liberal theologian Reinhold Niebuhr as a formative influence. In New York, Comey relentlessly prosecuted Martha Stewart; in Washington, he publicly apologized for the prosecutorial misconduct that caused two terrorism convictions to be overturned. There are two thoroughly consistent threads in Comey’s life, however: his love of jokes and his unswerving moral compass. It was those two traits I highlighted two years ago when Comey was about to become Ashcroft’s aide, writing that “there’s little risk Comey will lose his sense of humor in his new job. It’s only his soul that’s up for grabs.” And I figured it was merely that second sentence Comey was referring to in his November voice mail, after he’d quit the Justice Department to become head lawyer at Lockheed Martin. “Well,” Comey said with a chuckle, “I didn’t lose my soul.”

I didn’t get around to calling him back. Then, on New Year’s Day, the Times arrived on my doorstep with a big front-page story about the brave Justice Department official who’d objected to the Bush administration’s secretly spying on Americans: Jim Comey.

Maybe the only reason he left Justice was to make some real money. Comey isn’t returning calls from reporters at the moment, so it’s impossible to clarify the meaning of his phone message, and it’s premature to cast him as a civil-liberties martyr.

What’s certain, however, is that Comey is no soft-on-terrorism pantywaist; a man doesn’t become No. 2 to John Ashcroft without swearing allegiance to the Patriot Act. Yet some combination of conscience and respect for the rule of law led him to say no when the White House, in March 2004, expected him to rubber-stamp an extension of the National Security Agency’s warrantless wiretapping program. (Comey was not exactly high on the Bush family’s Christmas-card list anyway: Charged with appointing a special prosecutor to look into the Valerie Plame leak, Comey picked his former New York U.S. Attorney colleague and close friend Pat Fitzgerald, who has also proved to be something more than an administration patsy.)

Whatever the motivations, Comey’s objection is a stark, disturbing sign of just how badly the Bushies have botched the counterterrorism intelligence agenda. The true scandal here isn’t that Americans are having their privacy invaded; it’s that the Bush administration is crippling a key intelligence agency by entangling it in this mess. Because we need good spying.

For an example of its importance, look no further than the Brooklyn Bridge: Wiretaps helped foil a plot by Iyman Faris to destroy it. But now the patented Bush administration combination of arrogance and sloppiness is once again doing more damage to a useful intelligence tool than any congressional oversight would have. Faris’s conviction could be in jeopardy if it relied on illegal NSA intercepts instead of legal FBI snooping. (Comey, by the way, was worrying about such inadmissable-evidence problems years ago.)

Ever since September 11, of course, there’s been increased tension between protecting civil liberties and ensuring the nation’s safety. The Republicans have shifted the balance toward more intrusive law-enforcement tactics by playing the fear card. In a time of instantaneous electronic communication and ferociously lethal enemies, it seems an uneasy bargain worth striking.

And the threat hasn’t disappeared. Electronic spying is going to be a crucial component of any sophisticated, effective counterterrorism arsenal. “I have no doubts whatsoever about NSA’s crucial role in the war on terror, none whatsoever,” says Daniel Benjamin, a National Security Council staffer for five years in the Clinton administration and a co-author of The Next Attack: The Failure of the War on Terror and a Strategy for Getting It Right. “Its capabilities are vital, absolutely essential. I don’t think there’s an argument against what the government’s been doing on grounds of relevance. The question is going to be legality and legitimacy. Using signal intelligence this way undermines the public sense of legitimacy of the war on terror. If you’re fighting a war in the dark, you need as much public support as possible. You shouldn’t be raising additional questions about your goals and methods by doing things that are of questionable legality.”

Chuck Schumer ripped the Bush administration on the Senate floor after the secret domestic-spying program was exposed in the Times (and the paper has done a fabulous job of telling the NSA story, even if its public editor doesn’t like the timing). Yet Schumer acknowledges the necessity of a robust—and legal—wiretapping operation. “We need these tactics,” Schumer says. “And most Americans would concede that in a time of the war on terror, maybe the rules have to change to an extent. But you don’t do it by fiat.”

The NSA fiasco should be a warning to Ray Kelly about how popularity and unchecked power can lead to overreaching.

George W. Bush, as usual, wants to blame the press, saying that national security has been compromised by leaks about the NSA program. That’s pathetic. Everything leaks in Washington eventually, and it’s Bush who has created a far larger and more embarrassing story—sure to be kept alive in televised congressional hearings—by trying to keep the warrantless wiretap program completely clandestine and blatantly lying about adhering to standard court-order procedure. “If the administration had simply gone to Congress and quietly explained what they wanted to do three years ago, the leaders probably would have signed off, perhaps with some modifications,” says Bob Kerrey, the former soldier, senator, and member of the 9/11 Commission. “It’s very difficult to imagine they wouldn’t. And Bush would have avoided all this mess.”

So this is all good for the Democrats, right? Not likely. Call Bush, Dick Cheney, and Karl Rove evil geniuses if you want, but they know that most Americans still choose the promise of physical security over abstractions about privacy. “If you define the issue as civil liberties versus the war on terrorism,” says Democratic strategist Mark Mellman, “we probably lose the argument.”

Especially since the Bush administration hasn’t been spying on Howard Dean—at least not that we know of yet. This isn’t Watergate. Yet two of the presumed 2008 Democratic presidential contenders wasted no time stepping into the soft-on-terror trap. “Outrageous,” fumed Wisconsin senator Russ Feingold. “Lame,” jabbed Massachusetts senator John Kerry.

Feingold and Kerry are aiming squarely for the antiwar vote. There is one likely presidential aspirant, however, who seems to understand that the Democrats are still saddled with the stereotype that they’re wimps on national security. Senator Hillary Clinton’s reaction to the domestic-spying revelations has been considerably more muted. In her written statement explaining why she was voting to temporarily extend the Patriot Act instead of renewing it, Clinton mentioned that she is “troubled by recent reports” regarding domestic spying. In late December, Clinton sent an e-mail fund-raising message to supporters that included “A secret program that spies on Americans!” in her list of “disagreements” with Bush. Bill Clinton once said that Americans prefer a president who is “strong and wrong” to one who is “weak and right.” Apparently his wife didn’t need any fancy bugs to hear the message.

Another local figure would be wise to pay attention to what’s going on in Washington right now. The NSA fiasco should be a warning to Ray Kelly about how popularity and unchecked power can lead to overreaching. Kelly is light-years ahead of Bush and Cheney when it comes to managerial openness and regard for civil liberties. He’s done a fantastic job of protecting New York for four years, so he’s largely been given a pass for the NYPD’s excesses, particularly during the Republican convention, when nearly 2,000 people were summarily arrested and stashed in a far West Side bus depot turned holding pen.

Now videotapes have surfaced showing undercover cops masquerading as Critical Mass bike riders last April. The episode is more silly than sinister—burly, buzz-cut white guys in NFL jerseys wouldn’t seem to be the best “infiltrators” to dispatch to an anarchist pedal through Chelsea—but it generates unnecessary doubts about the NYPD. New Yorkers have invested a vast amount of trust in the police commissioner. Kelly’s great test for the next four years will be keeping the city safe without abusing that faith. Then he, like Jim Comey, can land a lucrative private job with his soul intact.